Page:Halsbury Laws of England v1 1907.pdf/253

 — — Extinction of Right of Action.

Part VI.

Part

VL

— Extinction

31

of Right of Action.

Part

VI.

Extinction

42. There are various ways in which a right

of action

may

be

of Right of

Action.

extinguished.

An agreement by one

party to accept satisfaction for a breach of contract or a tort, followed by performance of such agreement by the other party, extinguishes the first party's right of action in respect of such breach or tort (/). A creditor who assigns to a third party any right capable in law of being effectually assigned, thereby precludes himself from maintaining an action in respect of such right {g). A discussion as to those causes of action which pass to a trustee in bankruptcy, and those which remain in the bankrupt, and as to those liabilities of a bankrupt which do or do not become merged in a creditor's right of "proof," will be found in a later volume (/i). Eights of action may also be extinguished where the common law maxim Actio personalis moritur cum persona applies (^), or by lapse of time {j). A person who takes a security of a higher legal character than he already possesses extinguishes his legal remedies upon his existing security or cause of action. Thus, if he takes a bond for a simple contract debt, he can sue only on the bond(/) or if he recovers a judgment, his cause of action transit in rem judicatam, and he cannot again sue on the same cause of action (k). A right of action may be discharged by payment (/), and a right of action may be released by deed or by an unsealed agreement supported by consideration (/).

Accord and satisfaction,

Assignment,

Bankruptcy,

Death,

Lapse of

Merger,



Part VII. Sect.

1.

— Forms

Payment, Release,

of Action.

Old Forms of Action

(I).

43. The expression "form of action" has been defined as "the Old writs and peculiar technical mode of framing the writ and pleadings approaction priate to the particular injury which the action is intended to redress " (m). In early times all actions at law (as distinguished

(/) See title Contract. {(j) See title Choses iisr Action". (h) See title Bankruptcy and Insolyency. {i) See title Executors and Administrators. (j) See title Limitation of Actions. (k) See title Judgment. (I) The description of old forms of action contained in this section may possibly be regarded as superfluous in a work intended to state the law of England as it now stands. It was, however, thought better to depart in this instance from the

prmciple of excluding purely historical matter, since some acquaintance with the outlines of ancient procedure is necessary for an intelligent perusal of old reports.

(m) First Eeport of

Common Law

Commissioners (1851),

p. 32.